Barnes v. State , 103 Ala. 44 ( 1893 )

McOLELLAN, J.

The indictment against Barnes, the appellant, contains two counts. In the first count it is charged that he altered or defaced the mark of a sheep, the property of Elisha Armstrong, with the intention to defraud; and in the other, the charge is that he feloniously took and carried away one sheep, the personal property of Elisha Armstrong. Upon the evidence for the state the jury might have him found guilty under either count of the indictment. To the offense laid in the first count an intent to steal is not essential — an intent only to defraud is a necessary ingredient of that offense— and, therefore, charge 5 requested by the defendant which required an acquittal if the jury had a reasonable doubt that the defendant “intended to steal the sheep” was properly refused ; they might well have reasonably doubted that he intended to steal, and at the same time have been convicted beyond a reasonable doubt that his intention was to defraud the owner of the animal by altering or defacing its marks.

Charge 2 requested by the defendant is argumentative and directly invades the province of the jury in that it asserts that the defendant’s claim that the animal belonged to him is “a bona fide claim, or claim íd good faith,” when whether it was such claim or not was one of the main questions for the consideration and determination of the jury.

Charge 3 refused to the defendant in effect declared that there cannot be a larceny when the capture is open and in the presense of other persons, and there is no subsequent denial or concealment of the act. This is not the law, and the charge was well refused. — McMullen v. State, 53 Ala. 531.

The 7th instruction x'equested by the defendant should have been giveix. It is xxot abstract in its first proposition, as might at first glance be sxxpposed, sixxce there was evidence tending to show that the sheep alleged to have been stolen or re-marked belonged to another than Elisha Armstrong, in whom the property therein was laid by the iixdictinexxt, xxamely, the defendant himself; axxd no conviction could be had, of course, if the jury found in line with this texxdency of the evidence. The second proposition of the charge is clearly not abstract axxd is manifestly sound. If the defendant honestly believed the animal belonged to him, obviously he coxxld not have had the criminal iixtent necessary to guilt under either couixt of the indictment.

For the erx’or committed in refxxsing the 7th charge the judgment must be reversed. The caxxse is remaxxded.

Reversed axxd remanded.